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Because the appellant offered no evidence that counsel had been retained and duty counsel could not assist and abandoned the appeal, there was no basis for a further adjournment and the appeal was properly dismissed as abandoned.
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The appellant's s.10(b) right was violated by the delay and failure to inform he could contact duty counsel, but the breach was a situation-specific failure rather than systemic; applying the Grant factors the impact was moderate and the third factor favoured admission, so the evidence seized was admissible and the conviction stands while the sentence is varied to 12 months.
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The court found material changes since the earlier denial—duty counsel unequivocally will not assist, Staples provided previously missing financial documents, and unchallenged affidavit evidence established the foreclosure was an arms-length transaction that extinguished any alleged equity—therefore Staples currently lacks means and the interests of justice require appointment of counsel under s.684(1); Michael Lacy and Marco Sciarra were appointed to represent him and funding for the reconsideration application was ordered.
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Given the applicant lacks means, the Crown concedes the appeal is at least partly arguable, and the Inmate Appeal Duty Counsel Program has declined assistance because the appeal is beyond its scope, combined with the voluminous record and the applicant's limited education and dyslexia, the applicant cannot effectively present his appeal without counsel; accordingly a s.684(1) appointment of counsel is required and was granted.
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The appellant failed to meet his onus to show the guilty pleas were equivocal, involuntary or uninformed; the amplified record including duty counsel's affidavit shows unequivocal admissions and a valid plea, therefore the appeal is dismissed.
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The court held that Mr. Montgomery’s overnight detention complied with s. 503 of the Criminal Code and did not breach s. 9 of the Charter.
Leave to appeal was refused because binding Supreme Court precedent in Willier foreclosed imposing a police duty to monitor counsel competence under s.10(b), the argument that duty counsel is a state actor lacked support, and the second ground failed for want of an adequate evidentiary record to permit appellate review.
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The Supreme Court held that police did not breach s. 10(b) when the accused, after trying unsuccessfully to reach chosen counsel, spoke with duty counsel and said he was satisfied.
The s. 684 application was dismissed because the appellant did not establish either Bernardo criterion: he was capable of effectively presenting his appeal without counsel and the Court could properly decide the appeal without counsel; the adjournment was denied due to clear prior notice and lengthy delay; the Court ordered access to legal materials in the appellant's cell on request to the head librarian.
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The court found a breach of s.10(b) because the accused was not afforded a reasonable opportunity to consult with counsel of choice before the first breath test when his request to contact Mr. Pink was refused; breath samples are conscriptive and, given the breach was serious and flagrant, their admission under s.24(2) would bring the administration of justice into disrepute and render the trial unfair, therefore the breathalyzer evidence was excluded.
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